State v. Cressel

[Cite as State v. Cressel, 2014-Ohio-3353.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25979
v. : T.C. NO. 13CR1290
ALLEN T. CRESSEL : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 1st day of August, 2014.
..........
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BRYAN K. PENICK, Atty. Reg. No. 0071489, 1900 Kettering Tower, Dayton, Ohio 45423
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Allen Cressel,
filed
[Cite as State v. Cressel, 2014-Ohio-3353.]
October 30, 2013. Cressel appeals from the trial court’s October 29, 2013 judgment entry
of conviction, issued following a trial by jury on one count of domestic violence
(knowingly)(2 priors), in violation of R.C. 2919.25(A), a felony of the third degree. The
victim herein is Cressel’s girlfriend, Kristy G. (hereinafter “Kristy”). Cressel was sentenced
to 24 months in prison. We hereby affirm the judgment of the trial court.
{¶ 2} Cressel was initially charged by way of complaint in Dayton Municipal
Court on April 25, 2013. Following a preliminary hearing that occurred on May 6, 2013,
the municipal court issued a Journal Entry finding that probable cause existed that Cressel
committed the crime charged in the complaint, and remanding Cressel to the custody of the
Sheriff to await the action of the Grand Jury. On May 30, 2013, Cressel filed a pro se
“Motion for bond/ORC, Motion to Suppress, Motion to Dismiss, Motion to Discovery (sic)
Petition for Bill of Particulars, Subpoena ducas tecum (sic), Appoint of assistance of counsel
(sic).”
{¶ 3} On May 30, 2013, Cressel was indicted in the Montgomery County Court of
Common Pleas, and on June 4, 2013, he entered a plea of not guilty. On July 5, 2013,
appointed counsel for Cressel filed a motion to suppress, asserting that “Mr. Cressel argues
if the State establishes that a Miranda warning was given and the accused made an
uncoerced statement, this showing, standing alone, is insufficient to demonstrate ‘a valid
waiver’ of Miranda rights. * * * The prosecution must make the additional showing that the
accused understood these rights. * * *.” The trial court overruled Cressel’s motion on
August 23, 2013, following a hearing. The court noted that Cressel was interviewed on April
29, 2013, by Detective Nathan Via, that he was in custody at the time, that he was advised of
his constitutional rights, and that he waived those rights.
[Cite as State v. Cressel, 2014-Ohio-3353.]
{¶ 4} On September 20, 2013, the State filed a motion in limine, pursuant to
Evidence Rule 609, “to prevent the defense from mentioning or eliciting evidence regarding
State’s Witness [Kristy’s] prior Solicitation conviction * * * ” in 2008. Prior to the start of
trial, the court granted the motion in limine as follows:
THE COURT: * * * In reading the Rule 609, it’s clear that this is not
a felony that would allow the admissibility of the conviction, nor does the
Court find it to be a crime of * * * falsehood, which is also an exception.
Also, * * * I believe that the testimony would be irrelevant in this
case. The facts that have to be established against the Defendant, I believe,
the issue of the victim being a - - or the alleged victim, being a prostitute, I
guess is the allegation here, is irrelevant. * * * I think the prejudicial effect
of that does outweigh the probative value of this, based upon it doesn’t fall in
the criteria of 609. * * * .
{¶ 5} The following exchange occurred after the court’s ruling:
MR. PENICK: Two things from me, Judge. One, in light of your
rulings, excluding me - - from getting into the warrants and the - - the
prostitute - - or solicitation conviction, I think there’s some case law that says
I need to bring that up again in a courtroom and then there needs to be an
objection or - - or possibly the Defendant has waived. I don’t necessarily
want to get into that argument in front of the jury and possibly cause some
heartburn with the State or with the Court, obviously. We have an
agreement that if I don’t get into that on the record that I’m not waiving that
argument for purposes of perhaps this gentleman wants to appeal later.
4
THE COURT: I don’t fully understand what you’re saying, Mr.
Penick, but anything that we say in here on the record is obviously subject to
appeal.
MR. PENICK: Absolutely, Judge. But this is the case law that I’ve
read is basically, motions in limine and the rulings that - - that go along with
those are - - are just that. But it would be my duty then to - - to go ahead to
start to ask the question and then have the State objection (sic) to it and if I
never asked the question on the record during the trial then I think there’s
some authority that says I’ve waived that on behalf of the Defendant, and I
don’t want to waive those issues.
THE COURT: You’re not waiving, Mr. Penick. And - - and that’s a
- - a dangerous thing to allow you to start to ask the question in front of a
jury. So I - - I’m telling you for the record, that your record is secure. You
have made the objection. It’s not waived by you not asking the question or
attempting to ask the question in the courtroom. I just don’t want something
improper to be said in front of the jury that the Court has ordered to be
excluded, and I understand your position, but I’m making it clear for you on
the record but - -
MR. PENICK: Yes sir.
THE COURT: - - I’m making it clear for you on the record that you’re
not waiving that objection.
***
5
MS. MADZEY: I think, Bryan, what - -what you’re referring to the - -
the proper thing to do would have been - - and maybe it’s irrelevant now in
light of the Court’s ruling, but would be to approach and - - and renew your
motion or renew your request to get into that, so that at the time that you
wanted to get it but - -
THE COURT: And you believe - - if you believe that necessary,
certainly we’d allow that. I just don’t want you to - -
***
THE COURT: - - blurt out a question anticipating an
objection - - MR. PENICK: True.
THE COURT: - - so if - - if it is in the area that you want to - - to
restate it, please ask to approach, and I would allow you to do it at that point
in time.
***
{¶ 6} At trial, Officer Harry Dilley of the Dayton Police Department testified that
on April 21, 2013, he was working a shift from 3:00 p.m. to 11:00 p.m., and at
approximately 3:15 p.m., he responded to 1720 Warner Avenue in Dayton, where Kristy was
standing in front of an apartment complex with her uncle. Dilley testified that Kristy had a
purple, raised bruise underneath her right eye, near her nose, and that she was “upset. She
was crying off and on while I talked to her.” Dilley stated that he “completed a domestic
violence packet” with Kristy, photographed her injury, and issued a broadcast for Cressel.
Dilley identified a photograph of Kristy taken by him that depicts bruising and swelling
6
around her right eye and a mark on her nose. Dilley stated that Kristy advised him that
Cressel injured her at the Valero gas station at Troy and Valley Streets at approximately 1:00
p.m. Dilley stated that Kristy and Cressel had resided together for six months in
Miamisburg on Hemple Road, and that they previously resided together on North Dixie
Drive in Harrison Township.
{¶ 7} On cross-examination, Dilley testified it took him five minutes to respond to
Warner Street. He stated that Kristy’s uncle was not present when the incident occurred.
He stated that Kristy advised him of a dispute between her and Cressel preceding her injury
in which, while at the gas station, Cressel “tried to lift the hood up and she would sit on it.”
Dilley stated that Kristy advised him that the opening and closing of the hood occurred ten
times. Dilley stated that Kristy provided a written statement. Dilley stated that Kristy
advised him that after he punched her, Cressel got into another car that arrived at the gas
station and left, and that the occupants of the vehicle may have witnessed the incident.
According to Dilley, Kristy did not identify the occupants of the vehicle by name. Dilley
stated that he did not respond to the Valero location to look for witnesses. Dilley stated that
he learned from the computer in his cruiser that Cressel had previously been convicted of
domestic violence.
{¶ 8} The following exchange occurred:
Q. Now, you do not have any special training that * * * allows you
to identify when a particular bruise that you see on someone, when it
happened, do you?
A. No.
[Cite as State v. Cressel, 2014-Ohio-3353.]
Q. So you can’t look at a bruise and say, that happened two hours
ago, or that happened 12 hours ago, or that happened four days ago; would
you agree with me?
A. I would agree.
Q. So other than Ms.[Kristy] telling you that Mr. Cressel hit her, you
don’t really know how that bruise got there, do you?
A. No.
Q. Are you aware, sir, that prior to the incident that she’s alleging
with Mr. Cressel, that she had been in another altercation?
MS. MADZEY: Objection.
THE COURT: Sustained.
MR. PENICK: May we approach, Your Honor?
THE COURT: Yes.
(At sidebar)
MR. PENICK: If he’s aware of that altercation, I think the jury needs
to know that.
THE COURT: The way you ask it is getting into prior bad acts, which
is something that I’m not allowing. If you can somehow tie to this particular
bruise in a timeframe, then I will allow it.
MR. PENICK: I can do that. He may not even
know about the other incident.
MS. MADZEY: No, he doesn’t. He said that.
8
MR. PENICK: You don’t know that.
MS. MADZEY: He just said no.
MR. PENICK: He didn’t answer it.
THE COURT: Not the last question. I - - I ruled upon, but he says he
doesn’t know when a bruise would have occurred or what timeframe or
whatever.
So, I don’t know how you’re going to get there, but I’m not going to
allow it just to be opened to ask about prior bad acts. If there’s something
related to this particular bruise, that - - that he’s aware of by another act that
would have caused that, then I would allow that. So if you want to ask him
that question, and depending on what he says, I may let you go further.
***
BY MR. PENICK:
Q. The bruise that you observed on Ms. [Kristy] that we saw in the -
- in the photograph?
A. Yes.
Q. Okay. Could have happened another time, correct?
A. Yes.
MS. MADZEY: Objection. Speculation.
THE COURT: Overruled.
THE WITNESS: Yes.
{¶ 9} On redirect examination, Dilley stated that when he came on duty on the
9
date of the incident, there was a shift change that causes response times to be delayed
“[d]aily,” and that “it all depends on if the suspect is on the scene or not, with the
complainant.” He stated that there was no indication that Cressel was on the scene with
Kristy.
{¶ 10} Kristy testified that she is 32 years old, and that she resides on Ray Street
with her two brothers. She stated that the Ray Street address is the former home of her
deceased parents. Kristy stated that Cressel was her boyfriend, and that she has known him
for five or six years. She stated that she and Cressel had been in an intimate relationship for
“nine months or so” at the time of her injury. Kristy stated that she and Cressel were living
together on Hemple Road on April 21, 2013, in a camper in the back yard of the home of
Cressel’s father. Kristy stated that she and Cressel had lived there for “a month or two,”
and that they previously resided in another camper at 4915 North Dixie Drive, in Harrison
Township, at the L & H Auto Corral, which is owned by Cressel’s uncle, Lee Hale. When
asked when her “relationship evolved from somebody you know to somebody you’re dating
and living with,” Kristy responded, “I hadn’t seen him in a while and when we seen each
other again, it just kind of went into boyfriend/girlfriend.”
{¶ 11} Kristy stated that she knew Hale, and that Cressel would do odd jobs and
“walk the lot” for him in exchange for staying in the trailer. Kristy described the camper as
a small motor home, and she stated that “there was a microwave and the sink. The bed was
to the left and up front there were two seats that just had junk piled on them.” She stated
that the camper did not have running water, and that she and Cressel “ran electricity to it” by
means of an extension cord. She stated that the camper had a hotplate for cooking
10
purposes. According to Kristy, “some one was coming to get” the camper, and she moved
everything she owned into the second camper and “pulled it with a truck out to Hemple
Road.” She stated that she spent every night at the camper. Kristy stated that she and
Cressel would shower “at Mike Cooper’s or his sister’s, or I’d go to my brother’s.”
According to Kristy, the second camper was “[w]ay in the back; behind the barn,” at the
Hemple Road address. She stated that she occasionally went into the home of Cressel’s
father to “have coffee, take a bath, things like that.” She stated that Cressel’s father was
home “[m]ost of the time. If he wasn’t there, his girlfriend, Kim, was there.”
{¶ 12} Kristy stated that she and Cressel collected scrap metal for income and took
it to First Street Recycling. She stated that the truck they used was initially registered to
James Hodge, Cressel’s cousin, and that the “tags were going to be coming up expired. So
we put it in my name.” She stated that they did so because, while the truck belonged to
Cressel, he “has no driver’s license.” Kristy stated that the truck eventually broke down,
and that her uncle “loaned me his mom’s El Camino” for transportation and scrapping
purposes. She stated that on April 21, 2013, she and Cressel were at the Valero gas station
at Troy and Valley Streets, at about 1:00 p.m., when they got into an argument. The
following exchange occurred:
Q. * * * Walk us through what happened at the Valero that day.
A. We got into an argument. Allen has a very bad temper. He gets
upset and that’s it.
***
A. He’s - - he gets violent.
[Cite as State v. Cressel, 2014-Ohio-3353.]
He was yelling and cussing at me. Then he went to - - he popped
the hood on my uncle’s El Camino and I would shut it back. He did that
about three times. Then the third time is when he grabbed me by my arm
and hit me.
***
A. In my eye.
{¶ 13} Kristy stated that she believed that Cressel was trying to remove the battery
cables so that the truck would not run and she could not leave. She stated that she sat on the
hood to prevent Cressel from taking the cables, and that after he hit her, she “started
screaming, somebody call the police. Somebody help.” She stated that Cressel hit her with
a closed fist. Kristy stated that she was “dazed,” and that her nose started bleeding. She
stated that she called the police twice, and that they did not repsond. She stated that
“[t]here was a lot of people there and they just ignored me.” According to Kristy, after
“Allen had hit me, a car full - - there was a car that pulled up and said, Cressel, come on.
Let’s go before the police come. He ran, jumped in the car. They took off.”
{¶ 14} According to Kristy, “after that, I jumped in the car. I was hoping that it
would start. It started and I thought, well, I’m going to get out of here before he comes
back. So I left from the gas station, drove up to Warner Avenue and called the police
again.” Regarding her initial calls to the police, Kristy stated that she called 911 the first
time and 3-3-3-COPS the second time. Kristy stated that the police did not respond to
Warner Avenue until “[a]fter my aunt and uncle came and she called the police, they finally
did come.” In addition to a black eye, Kristy stated that she “had finger bruises on my arm
from where he grabbed me.” Kristy stated that the bruise on her face lasted several days,
12
and that the bruises on her arm lasted a week. She stated that she provided a written
statement, and that she was interviewed subsequently by Detective Via.
{¶ 15} Kristy identified, as Exhibit 8, the title to the 1978 truck in her name which
lists Ray Street as her address. She testified, “[t]hat’s the address I’ve always used for my
mail, mailing address.” She also identified, as State’s Exhibit 9, the registration to the
truck, as well as the affidavit for registration which lists the Ray Street address.
{¶ 16} On cross-examination, the following exchange occurred:
Q. Now, Ms. [Kristy], let’s be honest with the jury here. You’re - -
you’re no angel, are you?
A. No. Never said I was.
Q. * * * Now, let’s talk about your memory as far as this incident is
concerned. Do you remember everything that happened?
A. Not everything in detail. No.
Q. * * * Do you remember about that timeframe? Is there anything
going on with your memory that - - that may cause you to remember certain
details?
A. I mean, I remember it. Yeah, I remember it.
Q. Anything about your memory that would cause you to give
different stories to different people?
A. In - - they may have been slightly different, but they’re - -
Q. So as you sit here today and testify, do you think you have any
problems about recalling the events that took place on April 21st, 2013?
[Cite as State v. Cressel, 2014-Ohio-3353.]
A. No, sir.
{¶ 17} Kristy stated that she knew Cressel “[f]rom the neighborhood,” and that she
became his girlfriend in August, 2012. She denied receiving money from Cressel to be
intimate with him, and she denied being intimate with “some other gentlemen” during her
nine month relationship with Cressel. Kristy stated that Cressel’s father observed her on the
Hemple Road property. She stated that she did not know the specific address on Hemple
Road because “I do not use it as my mailing address.” Regarding the money they made
from scrap metal, Kristy stated that sometimes Cressel would “save it; sometimes he’s spend
it.” (Sic). She stated that Cressel “controlled the money.” She stated that she and Cressel
would “go out to eat, we’d drink. Different things.” Kristy stated that she drinks beer a
couple “times a week.” Kristy stated that she did not pay rent while they lived at the car lot,
and that Hale knew that they were occupying the camper. Regarding the camper on Hemple
Road, she stated that everything “I had is still in that camper. I have never went back to get
anything.”
{¶ 18} The following exchange occurred:
Q. * * * And you’ve indicated that there was some sort of argument
between you and Mr. Cressel and that there was something about him
opening up the hood several times. Do you remember testifying about that?
A. Yeah.
Q. And you indicated today that - - that happened three times?
A. Yeah.
Q. And do you remember meeting with Officer Dilley on - - on this
date, April 21st?
14
A. On Warner Avenue. Yeah.
Q. * * * And do you remember telling Officer Dilley that this
happened, this opening and closing of the hood, actually happened 10 times?
A. I don’t know. Maybe I exaggerated. It happened three times.
Three or four times.
Q. I - - that’s your testimony today. I understand that, but according
to Officer Dilley, it was - - you indicated it was ten times. So I’m just trying
to figure out, was it ten times or was it three times?
A. I don’t know.
Q. And you indicated earlier that - - that this argument, you had no
idea what it was about?
A. No. Allen had a very bad temper. He gets mad about anything.
{¶ 19} Kristy stated that she does not make any money outside of the scrapping
business, and “the only money I got was from my uncle, if it was not from there.” She
stated that she did not remember where the truck was parked at the Valero station. When
asked if she entered the store to buy a beer, Kristy stated that she already “had the beer.”
{¶ 20} The following exchange occurred regarding Kristy’s previous statements and
the reason Kristy and Cressel were in Dayton on the date of the incident:
Q. * * * You remember giving some written statements in this case?
A. Yeah.
Q. And do you remember meeting with Detective Via the next day?
15
A. Uh-huh.
Q. * * * And do you remember giving a written statement to Officer
Dilley?
A. I don’t really recall that. I - - everything happened. It’s all a
haze.
Q. I understand that, but do you remember Officer Dilley handing
you some documents - -
A. I remember - -
Q. - - that you might have wrote on?
A. Yeah.
Q. * * * Have you seen any of those statements before your testimony
here today?
A. No.
Q. * * * And do you remember testifying at a previous hearing in this
case?
A. Yes.
Q. Now, Ms. [Kristy], can you tell me what it is you were going to
Dayton for? What - - what were you coming to Dayton for?
A. I don’t recall. I - -
Q. You don’t remember?
A. No.
Q. * * * would it refresh your recollection if I
16
showed you your written
statement?
A. It might.
***
Q. Now after having the opportunity to - - to read that, let me ask
you this. Is that a written statement that you provided to Detective Via?
A. I believe.
***
Q. * * * And, now after reading that - - that line that I showed you to -
- that I pointed to you, does it refresh your recollection of why you’re - - you
were coming to Dayton?
A. No.
Q. It doesn’t?
A. Nope.
Q. * * * Why don’t you read that - - that sentence I just showed you,
then?
A. It says - -
MS. MADZEY: Objection.
THE WITNESS: - - we were coming to visit Allen’s sister.
THE COURT: Just a minute, ma’am. Just a minute. When there’s
objection, just wait.
Sustained.
17
BY MR. PENICK:
Q. * * * Let me ask the question this way. He told Detective Via that
you - - you were coming - -
MS. MADZEY: Objection. She doesn’t recall, Your Honor.
THE COURT: She says she doesn’t recall. It doesn’t refresh her
recollection, so.
MR. PENICK: Sure, Your Honor. We’re in a little impeachment
right here. She gave the statement. She remembers giving it.
THE COURT: This is not impeachment. She says she doesn’t recall.
She’s not saying she didn’t make it. She doesn’t recall. So it’s not
impeachment.
MR. PENICK: May we approach Your Honor?
THE COURT: No, we don’t need to.
Q. So you have no idea why you were going to - - coming to
Dayton?
A. I don’t recall, no.
(Pause in proceedings)
Q. And at the previous hearing that was held in this case, you recall
telling the judge in that case, I was going to see my brother.
THE COURT: Counsel, approach, please.
***
(At sidebar)
18
THE COURT: If you want to get into it, you got to do it the right way.
I’m not going to have you bringing up prior statements. You can ask her if
she recalls. You can use that to refresh her memory, but I’m not going to
allow you to stand up here and use the prior statements.
MR. PENICK: This is a statement given
at a hearing. I
can’t impeach her
with this?
THE COURT: You can impeach her, but ask her first if she recalls - -
show it to her, whether or not it refreshes her recollection.
MR.PENICK: And then she’s going to do it and then you’re going to
say - -
THE COURT: Well, she may or may not. Let’s see what she says
first. Let’s take her through the steps first and since that’s under oath, it is a
little bit different than the other statement. Let’s go through the right steps
first.
***
(End sidebar)
Q. If I could direct your attention to these couple of lines right here.
A. Uh-huh.
***
Q. And after reviewing that, does it refresh your recollection of why
19
you were coming to Dayton?
A. I do not recall why were coming to Dayton.
Q. Okay. But under oath you said - -
MS. MADZEY: Objection Your Honor. I’m not - - and I’m not sure
why this is relevant. She’s indicated she doesn’t remember, and I’m not sure
why it’s relevant who they were coming to see or why they were coming to
Dayton.
THE COURT: Lay your foundation first, Mr. Penick.
MR. PENICK: That - - that’s actually what I’m doing.
THE COURT: Well, you - - you went right to it. Lay your
foundation first.
***
MR. PENICK: You gave testimony, you remember doing that, right?
A. Yeah.
***
Q. You remember you were under oath at that time, right?
A. Right.
***
Q. So if you told the Judge, I was going to see my brother, who lives
on Ray Street, that was truthful at the time, wasn’t it?
A. Right.
Q. * * * Now, would you agree with me, that the testimony that you
20
gave at that hearing is different from the statement you gave Detective Via?
A. Yeah, it is. I agree with that.
Q. At - - at a hearing under oath, you say you’re coming to see your
brother, right?
A. Right.
Q. A little different from what you told Detective Via, wasn’t it?
MS.MADZEY: Objection. Asked and answered.
THE COURT: Sustained.
BY MR. PENICK:
Q. So let me ask you, which - - which version is true - -
A. I was - -
Q. - - the written statement or the - this - - the testimony you gave
under oath?
A. I was going to see my brother is why I was coming down to
Dayton.
Q. * * * And that’s what your position is now, right?
A. Right.
Q. Now, when you gave the written statement to Detective Via, it
was on April the 22nd, 2013, right?
A. Right.
***
Q. And then the hearing was held on May 6th; do you recall that?
[Cite as State v. Cressel, 2014-Ohio-3353.]
A. Somewhat, yeah.
{¶ 21} When asked if she remembered an altercation occurring between her, two
females and another male, shortly before the incident with Cressel, Kristy responded that she
did not recall the incident nor discussing it with Via in the course of her interview. She
stated that she has used the Ray Street address as her mailing address for years, “as long as I
can remember I’ve used it. I’ve always used it.” She stated that when Officer Dilley
responded to Warner Avenue, she was with her aunt and uncle, Joe Walker and Connie
Walker. Kristy stated that when she jumped onto the hood of the car, she “almost did get
[Cressel’s] hand.” On redirect examination, Kristy stated that the camper in the car lot did
not have an address.
{¶ 22} Henry Joe Walker testified that he is Kristy’s uncle, and that she and Cressel lived
together for eight or nine months. Walker stated that he “used to go to where they lived two to
three times a week, took them out to eat - -.” Walker stated that Kristy and Cressel initially lived
in a motor home on “the corner of Frederick and Needmore Road,” in the parking lot of L & H
Motor Sales. Walker stated that Cressel “was the security guard * * * for the car lot.”
According to Walker, Kristy and Cressel worked together, and they would “go out in the truck and
collect skids and barrels and anything they could to make some money.” Walker stated that he
gave Kristy and Cressel odd jobs and gave them money. He stated that Kristy and Cressel later
“moved into a pull-type trailer. * * * It was smaller than the motor home.” Walker stated that the
smaller camper was moved to Cressel’s father’s home on Hemple Road. Walker stated that at the
time of the incident, Kristy and Cressel had been living on Hemple Road for approximately three
weeks. Walker stated that he visited the couple three or four times, and that if he needed to find
Kristy, he went to “the little trailer.”
22
{¶ 23} Walker stated that Cressel initially used an old Ford pickup truck for
transportation, and that “it backfired and caught on fire, and he had to get a carburetor.” Walker
stated that he “had the carburetor rebuilt and paid for it” for Cressel. In the meantime, he stated
that he loaned the couple his 1984 El Camino pickup truck. Walker stated that on the day of the
incident, he received a call from Kristy “around noon,” and that he subsequently proceeded to the
Valero gas station. When he arrived, Walker testified, Kristy was not there. He stated that he
received another call from her, and that he subsequently proceeded to Warner Street to meet her.
According to Walker, Kristy “was in shambles. She had a black eye,” and she “was scared to
death.” Walker stated that the police responded to Warner Street and Kristy provided a
statement.
{¶ 24} After the State rested, William McReynolds testified that he is a Dayton Police
Officer, and that on April 4, 2013, he came into contact with Kristy while on routine patrol, and in
the course of that contact, he “found that her address was [on] Ray Street.” McReynolds stated
that he recorded the information. On cross-examination, McReynolds stated that he did not ask
Kristy if she lived at the Ray Street address or if she slept there every night. McReynolds
indicated that he asked Kristy for her address so that he would know how to reach her if he needed
to mail something to her.
{¶ 25} Allen Tyrone Cressel (“Cressel’s father”) testified that he resides at 6121 Hemple
Road, and that Cressel is his son. He stated that in the month preceding April 21, 2013, there was
a camper on his property. Cressel’s father stated that Cressel brought the camper to his property,
and that Cressel “said he was going to store his stuff in it because he had to move it from
somewhere else and he said he was going to get an apartment.” Cressel’s father stated that
23
“[e]very now and then” Cressel “stayed back there” in the camper. According to Cressel’s father,
maybe “three times a week, I’ve seen him go back there. He hauls scrap metal and he would go
back there and clean some metal and then he’d go back out and then I wouldn’t see him again for
a couple more days.” When asked about his relationship with Cressel, Cressel’s father stated, “at
times, we don’t get along good. And sometimes we get along a little bit.” Cressel’s father stated
that he met Kristy “two or three times. She was driving my son’s truck.” Cressel’s father stated
that Kristy and Cressel were “[b]oyfriend and girlfriend.” Cressel’s father denied that Kristy
would come into his house to see him or his girlfriend.
{¶ 26} The following exchange occurred:
Q. And if Mr. Cressel or anybody else was living in the camper in your
backyard or on your property, would you be in a position to know whether they - -
that was, in fact, happening?
A. If they was living back there, yeah.
Q. And were they? Was anybody living back there, to your knowledge?
A. Not that - - no, sir. Not - - I do know a couple times if they did stay
back there because they left the next morning. They had - - they was either in that
camper or in the truck.
Q. * * * Now how frequent were the - - how frequent was that?
A. The camper was back there for about six, seven weeks, maybe.
***
A. If I remember. I - - and they would come in, maybe ten, 12 times.
{¶ 27} On cross-examination, Cressel’s father stated that Kimberly Abner is his
24
girlfriend, and that she resides with him. The following exchange occurred:
Q. * * * And you indicated for six to seven weeks, your son was staying out
in a camper from time to time at the back of your property; is that right?
A. You know, I don’t know if he was staying back there because me and
him don’t talk.
Q. * * * So you didn’t hang out, right?
A. No.
Q. * * * But you knew he brought that camper out there; is that right?
***
A. My young brother wanted to store the camper back there.
***
A. And he - - he was going - -eventually, sell the camper and at that time,
my son got homeless and - - so I told him he could take the camper - - he had
somewhere that he could take the camper and park it.
***
A. So he took it and then he called me and asked me if he could bring it
out there and park it to keep his stuff in.
{¶ 28} Cressel’s father stated that occasionally when Cressel arrived at the camper, “I
didn’t know he had anybody with him because he would be driving.” Cressel’s father stated that
he goes to bed at 8:30 or 9:00 p.m., whereas Cressel is a “late person.” Cressel’s father stated that
a “[l]ot of time,” Cressel could come in late at night without Cressel’s father’s knowledge, and he
acknowledged that Kristy could have been with Cressel. When asked if he remains on his
25
property all day, he replied, “No, I can’t stand that.”
{¶ 29} Finally, Nathan Via testified that he has been employed with the Dayton Police
Department for almost 17 years. He stated that he interviewed Kristy on April 22, 2013 as the lead
detective on the case. He stated that Kristy provided him with a written statement. Via stated
that he learned of Cressel’s prior convictions in the course of his investigation and that Cressel
was subsequently charged and taken into custody. Via stated that after talking to Kristy, he
determined that the incident occurred “around 1:00 in the afternoon.” Via identified Kristy’s
written statement from April 22, 2013. When asked what he learned was the purpose of Kristy’s
trip to Dayton on the day of the incident, Via replied, “[s]he came to visit Allen’s sister, according
to the statement.” Via acknowledged that at the preliminary hearing in May, 2013, Kristy
testified that she had come to Dayton to visit her brother on Ray Street, which he further
acknowledged is near the Valero gas station and Warren Street. Via stated that he represented to
Cressel in the course of his interview with him that there were three witnesses to the incident, and
he acknowledged that in fact there “were no witnesses.” Via stated that he also represented to
Cressel that he had obtained a video of the incident, and he testified that in fact there is no video
of the incident.
{¶ 30} Via stated that he retrieved surveillance footage from the Valero gas station, and
that there “were a total of six screens from different cameras. They (sic) were huge gaps in
certain locations of those screens; there was nothing of evidentiary value.” According to Via,
there is “a huge gap to the one side of the building, an absolutely huge gap that goes all the way
out to the street.” Via stated that the 911 calls were not retrieved, and that no one attempted to
obtain witness statements at the gas station since, “[d]ue to the extreme differences in time, there
26
would have been no reason for it.”
{¶ 31} On cross-examination, Via stated that he has spent 12 years with the Special
Victims Unit investigating domestic violence complaints, and that he has handled almost 10,000
cases. Via identified photographs that he took of Kristy in the course of his interview with her
depicting a black eye and bruising on her arm, and he stated that the photos are “[a]ll consistent
with her statements” regarding what happened to her. Via stated that the photos accurately depict
the injuries that he observed.
{¶ 32} On redirect examination, the following exchange occurred:
Q. Those photographs depicting some injuries. Now, sir, do you have
any specialized knowledge that would enable you to identify the exact time that an
injury was sustained by a person?
A. Exact time?
Q. Yes.
A. No, sir.
Q. Now, during your investigation of this particular case, you had learned
that there was an altercation that Ms. [Kristy] was involved in - -
MR. MADZY: Objection, Your Honor.
THE COURT: Go ahead and finish your question.
BY MR. PENICK:
Q. You learned about an altercation that Ms. [Kristy] was involved in near
the time of this incident?
MS. MADZY: I’m going to object to the characterization and there’s no
27
facts in evidence.
THE COURT: Why don’t you rephrase the question?
BY MR. PENICK: You learned about - - that she was involved in an
altercation, a dispute?
A. A dispute, yes.
Q. With some - - two females and a male?
Why are you looking at the prosecutor?
A. I’m waiting to see if she’s going to object.
Q. Okay. Sir, it’s my question. If she’s going to object, she’s going to
object.
So my question to you, two females and a male?
Is she going to answer the question for you?
A. I’m trying to figure out what your question is. I’ve already asked - -
answered one of your questions - -
***
A. - - and I think you’re asking it twice, so please go forward.
Q. Two females involved in this dispute, two females and a male, right?
A. In a verbal dispute.
Q. And you spoke to Ms. [Kristy] about this, didn’t you?
A. Yes.
Q. * * * And you - - it was acknowledged that there was a dispute, right?
A. A verbal - -
[Cite as State v. Cressel, 2014-Ohio-3353.]
MS. MADZEY: Objection, Your Honor.
THE COURT: Sustained now.
BY MR. PENICK:
Q. No, there’s not a lot that happened, is there?
THE COURT: Sustained.
BY MR. PENICK:
Q. Again, I’m over here. Okay.
Did she
appear
to be
surprise
d when
you
talked
to her
about
that?
A. No.
Q. And that dispute, whatever we’re going to call it, happened near the
time that this - - this alleged incident took place, right?
A. The day before, she said.
Q. Day before or the night before?
A. Day before.
29
MS. MADZEY: Your Honor, may we approach?
(At sidebar)
THE COURT: Just object.
MS. Madzey: I - - well, I didn’t want to (indiscernible) objections. We’re
speaking objections, but this is beyond cross.
THE COURT: Your objection is sustained.
MR. PENICK: Well, she asked about (indiscernible), so I can get into it.
THE COURT: I gave you some leeway to get into it but, you know, that’s
going to be it, okay?
(End sidebar)
{¶ 33} Finally, on recross-examination, Via testified that Kristy never indicated to him
that anyone other than Cressel caused her injuries.
{¶ 34} Cressel asserts two assignments of error herein with subparts. Cressel’s first
assigned error is as follows:
THE TRIAL COURT MADE ERRONEOUS EVIDENTIARY RULINGS
WHICH DENIED APPELLANT HIS RIGHT TO A FAIR TRIAL.
A. The Trial Court erred by not allowing Appellant to impeach the victim
with her own prior inconsistent statements.
B. The Trial Court erred by instructing the jury that [Kristy] was not
impeached when in fact she was.
C. The Trial Court erred when it did not allow Mr. Cressel to introduce
evidence of [Kristy’s] involvement in a prior altercation.
30
D. The Trial Court erred in ruling that Mr. Cressel was not permitted to
introduce evidence that [Kristy] is a prostitute to explain the nature of the
relationship she had with Mr. Cressel.
{¶ 35} As this court has previously noted, “[t]he admission or exclusion of relevant
evidence rests within the sound discretion of the trial court and will not be disturbed absent an
abuse of discretion. * * *.” State v. Brown, 2d Dist. Montgomery No. 21540, 2007-Ohio-2098, ¶
24. “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary, or
unconscionable. Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985). A
decision is unreasonable if there is no sound reasoning process that would support that decision.
AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d
157, 553 N.E.2d 597 (1990); Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989,
2012-Ohio-4621, ¶ 7.
{¶ 36} Cressel initially asserts that “[Kristy] was claiming that she could not recall her
own-handwritten statement she gave to Officer Dilley.” He asserts that defense counsel “was
improperly precluded from introducing the statement for the purpose of impeaching [Kristy].”
Cressel asserts that “[n]ot allowing counsel to read [Kristy’s] inconsistent statement * * * is in
direct contradiction to [State v. Reed, 155 Ohio App.3d 435, 2003-Ohio-6536, 802 N.E.2d 862 (2d
Dist.)] in which this Court stated that if the witness could not recall the content of her prior
inconsistent statements, extrinsic evidence may be introduced.”
{¶ 37} In Reed, the Appellant was found guilty of murder, and after the shooting he told
numerous people that he killed the victim. Id., ¶ 4. Witness Stacy Young, in the course of her
cross-examination by defense counsel, was “asked whether she recalled questions by Detective
31
Eshelman during her first police interview and whether she remembered her answers to those
questions. Young indicated that she recalled being asked whether other individuals had talked to
her about the shooting and what Reed had said to her about it.” Id., ¶ 31. She testified
repeatedly, however, “that she did not remember her responses to many of those questions.” Id.
After noting that, pursuant to Evid.R. 613(B), “‘a lack of recollection is treated the same as denial,
and use of extrinsic impeachment evidence is then permitted,’” this Court determined that
“Young’s lack of memory regarding her first interview laid a foundation for the admission of
extrinsic evidence, such as the testimony of Detective Eshelman, regarding her prior statements.”
Id., ¶ 30-31(citation omitted).
{¶ 38} Evid. R. 613 governs impeachment by self-contradiction, and section (B) provides
as follows:
(B) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic
evidence of a prior inconsistent statement by a witness is admissible if both of the
following apply:
(1) If the statement is offered solely for the purpose of impeaching the
witness, the witness is afforded a prior opportunity to explain or deny the statement
and the opposite party is afforded an opportunity to interrogate the witness on the
statement or the interests of justice otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action
other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence under Evid.R.
32
608(A), 609, 616(A), or 616(B);
(c) A fact that may be shown by extrinsic evidence under the
common law of impeachment if not in conflict with the Rules of Evidence.
{¶ 39} We agree with the State that Kristy’s “inability to recollect the prior statement is a
denial of it,” pursuant to Reed. However, the statement regarding Kristy’s purpose in coming to
Dayton on the date of the incident, as the State asserts, “is collateral to a determination of whether
Cressel committed domestic violence.” In other words, the statement is not admissible pursuant to
Evid. R. 613(B)(2)(a), or otherwise under the rule. Finally, we disagree with Cressel’s assertion
that he was “denied the opportunity to effectively” cross-examine Kristy; in the course of the
lengthy exchange quoted above, Kristy clearly acknowledged that the written statement that she
provided to Via on April 22, 2013 differed from the testimony that she gave under oath at the
preliminary hearing on May 6, 2013, regarding her purpose in coming to Dayton. Finally, we
note that the inconsistency in her statements was further highlighted in the course of Via’s
testimony.
{¶ 40} Cressel next asserts that the “trial court’s evidentiary ruling further prejudiced Mr.
Cressel because the court, even if inadvertently, instructed the jury that prior inconsistent
statements from [Kristy] were not considered. This denied Mr. Cressel his right to a fair trial.”
According to Cressel, the entire case against him “was comprised solely from testimony of
[Kristy], coupled with the fact that essentially all of [Kristy’s] allegations were inconsistent and/or
conflicting with her prior statements * * *.” Cressel asserts that his “defense was based on the
fact that [Kristy] was not truthful and that her story could not be believed,” and it “is simply not
reasonable for any fact finder to find [Kristy] credible absent the trial judge making that statement
33
to the jury. Otherwise, the jury would not have, and could not have, found Mr. Cressel guilty
based on [Kristy’s] testimony.”
{¶ 41} We agree with the State that the court’s ruling regarding Kristy’s written
statement to Via was not an instruction to the jury that somehow bolstered her credibility. As
noted above, after the court sustained the State’s objection to defense counsel’s request that Kristy
read from her statement to Via, defense counsel adduced evidence from Kristy (and Via) that her
written statement to Via and her testimony at the preliminary hearing were inconsistent (regarding
an issue immaterial to Cressel’s guilt).
{¶ 42} Cressel next asserts that the trial court erred when it did not allow him to
introduce evidence that Kristy was involved in an altercation before the incident, and that the court
“essentially barred him from a defense that may have shown another cause of [Kristy’s] injury.”
Cressel asserts that had defense counsel “been permitted to dig deeper into that issue with
Detective Via, he would have been able to clearly show the jury that the altercation was not a
‘verbal’ altercation, but a physical one.” The State responds that “the trial court properly decided
that further questioning of Detective Via was outside the scope of cross-examination,” and that
“even if Cressel’s questioning of Detective Via was not outside the scope of cross-examination,
no prejudice resulted from sustaining the State’s objection.”
{¶ 43} “As a general rule, the scope of redirect examination is limited to matters inquired
into by the adverse party on cross-examination. Holtz v. Dick (1884), 42 Ohio St. 23, syllabus.”
State v. Thompson, 12th Dist. Butler No. CA94-07-147, 1995 WL 295253, * 3 (May 15, 1995).
{¶ 44} Defense counsel sought to establish in his direct examination of Via that Kristy
was not credible, in that she gave inconsistent statements about the purpose of her trip to Dayton,
34
and that Via misrepresented to Cressel that there were witnesses to and videotape of the incident,
when in fact no such evidence against him existed. On cross-examination, the State adduced
testimony from Via that Kristy’s injuries were consistent with her statements regarding Cressel’s
conduct in assaulting her. While defense counsel could have examined Via regarding the alleged
prior altercation in his direct examination, he failed to do so, and as the State asserts, introduction
of the topic in redirect examination exceeds the scope of the State’s cross-examination. Finally,
even if the trial court did abuse its discretion in sustaining the State’s objection, prejudice is not
demonstrated. Defense counsel adduced testimony from Via that he learned that Kristy was
involved in a “verbal dispute” with two females and a male the day before the incident, and that
he discussed the dispute with Kristy. We cannot agree with Cressel that if he had been allowed to
“dig deeper” he “would have been able to clearly show the jury that the altercation was not a
‘verbal’ altercation, but a physical one.”
{¶ 45} Finally, Cressel asserts that the “trial court erred in ruling that Mr. Cressel was not
permitted to introduce evidence that [Kristy] is a prostitute to explain the nature of the relationship
she had with Mr. Cressel.” The State responds that “finality did not attach to the trial court’s in
limine ruling,” and that Cressel’s argument lacks merit.
{¶ 46} In State v. Baker, 170 Ohio App.3d 331, 2006-Ohio-7085, 867 N.E.2d 426 (2d
Dist.), this Court noted as follows:
“[A] decision on a motion in limine is a pretrial, preliminary, anticipatory
ruling on the admissibility of evidence. A ruling on a motion in limine is
interlocutory, usually dealing with the potential admissibility of evidence at trial. It
therefore cannot serve as the basis for an assignment of error on appeal.” Krotine v.
35
Neer, Franklin App. No. 02AP–121, 2002-Ohio-7019, 2002 WL 31838301, at ¶ 10,
citing State v. Grubb (1986), 28 Ohio St.3d 199, 201–202, 28 OBR 285, 503
N.E.2d 142. A ruling on a motion in limine reflects the court's “anticipatory
treatment of the evidentiary issue. In virtually all circumstances finality does not
attach when the motion is granted. Therefore, should circumstances subsequently
develop at trial, the trial court is certainly at liberty ‘to consider the admissibility of
the disputed evidence in its actual context.’ ” Grubb at 201–202, 28 OBR 285, 503
N.E.2d 142, quoting State v. White (1982), 6 Ohio App.3d 1, 4, 6 OBR 23, 451
N.E.2d 533. For those reasons, a motion in limine does not preserve for purposes of
appeal any error in the disposition of the motion in limine. “ ‘An appellate court
need not review the propriety of such an order unless the claimed error is preserved
by a timely objection when the issue is actually reached during the trial.’ ” Grubb
at 203, 28 OBR 285, 503 N.E.2d 142, quoting State v. Leslie (1984), 14 Ohio
App.3d 343, 344, 14 OBR 410, 471 N.E.2d 503. The failure to object at trial to the
allegedly inadmissible evidence constitutes a waiver of the challenge. State v.
Wilson (1982), 8 Ohio App.3d 216, 8 OBR 288, 456 N.E.2d 1287; State v.
Draughon, 10th Dist.No. 02AP–958, 2003-Ohio-1705, 2003 WL 1757232, ¶ 22.
{¶ 47} The trial court initially advised counsel for Cressel that “I’m making it clear for
you on the record that you’re not waiving that objection,” but then the court subsequently advised
defense counsel to “please ask to approach” at the appropriate time to renew his objection. If we
assume, based upon the trial court’s initial representation to defense counsel that “[y]ou have
made your objection,” such that the issue of Kristy’s conviction is arguably preserved, we
36
conclude that Cressel’s argument lacks merit.
{¶ 48} Evid.R. 609 governs impeachment by evidence of conviction of a crime and
provides as follows:
(A) General rule
For the purpose of attacking the credibility of a witness:
(1) subject to Evid.R. 403, evidence that a witness other than the accused
has been convicted of a crime is admissible if the crime was punishable by death or
imprisonment in excess of one year pursuant to the law under which the witness
was convicted.
(2) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),
evidence that the accused has been convicted of a crime is admissible if the crime
was punishable by death or imprisonment in excess of one year pursuant to the law
under which the accused was convicted and if the court determines that the
probative value of the evidence outweighs the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.
(3) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),
evidence that any witness, including an accused, has been convicted of a crime is
admissible if the crime involved dishonesty or false statement, regardless of the
punishment and whether based upon state or federal statute or local ordinance.
{¶ 49} On May 3, 2008, Kristy pled guilty to solicitation, in violation of R.C.
2907.24(A)(1), in Dayton Municipal Court. R.C. 2907.24 (A)(1) provides that “[n]o person
shall solicit another who is eighteen years of age or older to engage with such other person in
37
sexual activity for hire.” The offense is a misdemeanor of the third degree. R.C. 2907.24(C).
The penalty for the conviction is neither death nor imprisonment for over one year, and
dishonesty or false statement are not elements of the offense. Accordingly, the trial court did not
err in granting the state’s motion in limine.
{¶ 50} Since an abuse of discretion is not demonstrated, Cressel’s first assigned error is
overruled.
{¶ 51} Cressel’s second assigned error is as follows:
THE EVIDENCE INTRODUCED AT TRIAL WAS SO INCREDIBLE THAT
APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
1. [Kristy’s] testimony conflicted with Officer Dilley’s.
2. [Kristy’s] testimony conflicted with her own testimony and prior statements.
3. [Kristy’s] testimony conflicted with Mr. Walker’s.
4. [Kristy’s] testimony conflicted with Officer McReynolds’.
[5.] [Kristy’s] testimony conflicted with Mr. Cressel, Sr.’s.
[6.] [Kristy’s] testimony conflicted with Detective Via’s.
{¶ 52} As this Court has noted:
“[A] weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is
more believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, 2009 WL 282079, ¶ 12. See Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the
38
evidence’ refers to a greater amount of credible evidence and relates to
persuasion”). When evaluating whether a conviction is contrary to the manifest
weight of the evidence, the appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider witness credibility, and determine
whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder's decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684 (Aug. 22, 1997). However, we may determine which of several competing
inferences suggested by the evidence should be preferred. Id. The fact that the
evidence is subject to different interpretations does not render the conviction
against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of
conviction should be reversed as being against the manifest weight of the evidence
only in exceptional circumstances. Martin, 20 Ohio App.3d at 175, 485 N.E.2d
717.
State v. Hudson, 2d Dist. Clark No. 2011 CA 100, 2013-Ohio-2351, ¶ 40-41.
{¶ 53} R.C. 2919.25(A) provides: “No person shall knowingly cause or attempt to cause
physical harm to a family or household member.” “A person acts knowingly, regardless of his
39
purpose, when he is aware that his conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowledge of circumstances when he is aware that such
circumstances probably exist.” R.C. 2901.22(B). Physical harm “means any injury, illness, or
other physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). R.C.
2919.25(F) (1)(a)(i) provides that a family or household member means “[a] spouse, a person
living as a spouse, or a former spouse of the offender.” “‘Person living as a spouse’ means a
person who is living or has lived with the offender in a common law marital relationship, who
otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within
five years prior to the date of the alleged commission of the act in question.” R.C. 2919.25(F)(2).
{¶ 54} Having thoroughly reviewed the entire record, and deferring to the jurors’
decisions regarding whether and to what extent to credit the testimony of the witnesses, we cannot
conclude that Cressel’s conviction is against the manifest weight of the evidence. Dilley testified
that Kristy and Cressel resided together, first in Harrison Township and then in Miamisburg.
Dilley stated that Kristy told him that Cressel punched her in the eye, that she was crying when he
arrived, and that he observed a purple, raised bruise beneath her eye. Dilley identified a
photograph taken by him depicting Kristy’s injury. Kristy testified that she and Cressel resided
together in an intimate relationship, and that she spent every night with Cressel. She described
their routine and living arrangement in detail. Kristy testified that she uses the Ray Street address
as her mailing address only, and that the camper in the car lot did not have an address. Kristy
testified that Cressel punched her in the eye with a closed fist and grabbed her arm, leaving bruises
that lasted several days. Walker also testified that Cressel and Kristy resided together, first in the
camper at the car lot, and then in a smaller camper on Hemple Road. Walker visited them often,
40
according to his testimony. Walker stated that if he needed to find Kristy, he went to “the little
trailer.” Walker’s testimony was consistent with Dilley’s regarding Kristy’s condition when he
arrived at Warner Street.
{¶ 55} While McReynolds testified that Kristy provided the Ray Street address to him in
the course of his contact with her, he acknowledged that he did not ask her if she lived there, and
that he asked for her address to enable him to contact her by mail. Cressel’s father’s testimony
was inconsistent in that he initially denied that any one was living in the camper on his property,
and then he stated that he did not know if Cressel “was staying back there because me and him
don’t talk.” He stated that he and Cressel kept different hours, and he acknowledged that Cressel
and Kristy were “boyfriend and girlfriend.” Finally, Via, an experienced detective, identified
photographs taken by him depicting Kristy’s black eye as well as bruising on her right arm, and he
testified that the photos reflect injuries consistent with Kristy’s statements about Cressel’s conduct
in assaulting her. Via stated that Kristy never indicated to him that anyone other than Cressel
caused her injuries.
{¶ 56} While Cressel asserts that Kristy is not credible, and that there are numerous
inconsistencies within her own testimony and between her testimony and that of the other
witnesses, the jury was free to believe the evidence presented that Kristy and Cressel resided
together, and that Cressel grabbed her arm and punched her in the eye. In other words, the jury
was free to credit the evidence presented that Cressel knowingly caused physical harm to a
household member, in violation of R.C. 2919.25(A). Since we cannot conclude that Cressel’s
judgment of conviction should be reversed and a new trial ordered, his second assigned error is
overruled. The judgment of the trial court is affirmed.
41
..........
FROELICH, P.J. and HALL, J., concur.
Copies mailed to:
April F. Campbell
Bryan K. Penick
Hon. Dennis J. Adkins